I'm unable to complete an S172 for speeding as we don't know who was driving. What should I do?

After returning home from a short break in August I received A NIP and S172 from Humberside police. The alleged offence occurred on a stretch of road we had commuted back and forth along to the coast several times. We had shared the driving and neither of us could remember who was driving at the time, neither of us recall seeing a speed camera or seeing a flash. I was going to request the photographic evidence, and noticed they had enclosed an FAQ which pointed out they didn't have to provide photographic evidence until the case went to court. Therefore, I sent them a letter saying I didn't know who was driving at the time of the alleged offence. They responded with a letter which stated I had requested photographic evidence (which I had not) and enclosed the photos. I was still unable to determine the driver. I then received another letter from them saying I had failed to respond to the NIP and S172. I replied with a copy of my initial letter pointing out I had responded, adding I had also now reviewed the photos and was still unable to determine who was driving, and that it was not a case of me refusing to provide the information, it was that I did not have the information to give.

I am now in receipt of a letter from them stating that, under the circumstances, enforcement action will continue as it is my responsibility as the registered keeper to identify the driver. I have failed to do this and the matter has been referred to the Magistrates' court. I am currently awaiting a summons. Whilst I am sure I'm in the right here, and have broken no law, I have zero legal experience and am now tasked with preparing a defence. Any help would be gratefully received.

Asked on 8 September 2010 by Mark D

Answered by Lucy
You need legal help with this as Section 172 is a tricky offence with a very stiff penalty as it is intended and an enforcement offence to make people provide information. As you rightly say, if you don't know you cannot tell them. There is a defence if you have diligently attempted to discover who was driving but have failed to do so. However the courts set the bar pretty high on "diligence" and it is not usually enough to say the photographs are not clear. Before embarking on defending a Section 172 you need to show that the vehicle was insured for and driven by more than one person, and that both of you drove the car on that day. It helps if you can show that you would have driven past the camera several times.

However, the fundamentals of winning a Section 172 come down to how credible you are and the way that you present your case. You are right to seek some legal assistance as unfortunately we come across many people who believe they can "handle it" but end up leaving court somewhat dazed with six points and a fine around the £500 mark.
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